No. 7. [et demandoms jugement, &c.-Mutl. ceo ne William A.D. 1345-6. Herlyn fut persone enpersone; prest, &c.]1 William voleit lavere dit qe traverser 6 et revient, et сео ne fut unqes lour entencion de si generalment Herlyn ne fut unqes persone, mes puis qe la Court recorda par la manere il alleggea 8 restitucion de Hughe qe Giffard qe fut prive, ut supra, et dit outre saunz ceo qe William Herlyn fut persone enpersone come ils avoint suppose; prest, &c. · Et alii e contra. A.D. 1345-6. Replevin. 2 No. 8. 1 (8.) § Replevin against a Prior and one A.1 The Prior denied the taking. A., as bailiff of the same Prior, made cognisance of the taking on the ground that the same beasts were levant and couchant in the vill of A., and were driven into the vill of B.,2 which two vills do not intercommon, and were taken in a place other than that mentioned in the plaint, and while they were in flight from that place, &c., he overtook them at the place at which it is supposed by the plaint that he took them.-Skipwith. He has confessed the taking on behalf of the person who has disavowed it; judgment whether he shall be admitted so to do.-Blaykeston. A bailiff shall not be prejudiced by his lord's disavowal.-Thorpe. The lord can avow for himself and his bailiff, and after avowry the bailiff will be out of Court; therefore it seems that 1 For the names see p. 41, note 1. | 2 For the names see p. 41, note 5. No. 8. 1 1345-6. Replegiari. avers [Fitz., A., et Retourne des avers, villes 21.] (8.) § Replegiari vers un Priour et un A. Le A.D. Priour dedit la prise. A., come baillif mesme le Priour, conust la prise par tant qe mesmes les furent couchaunz 2 et levauntz en la ville de furent chacetz en la ville de B., queux deux sentrecomunent 3 pas, et furent pris en autre lieu, et en defuant cele lieu, &c., il les atteigna au lieu ou par la pleinte est suppose, &c.5-Skip. Il ad conu la prise pur celuy qe lad desavowe; jugement sil serra resceu.--Blaik. Par desavowere de ne soun seignur le baillif ne serra pas atteint.-Thorpe. Le seignur poet avower pur luy et soun baillif, et apres avowere le baillif serra hors de Court; donqes 1 From the four MSS., as above, but corrected by the record, Placita de Banco, Hil., 29 Edw. III., R 180. It there appears that the action was brought by William Dysny, knight, against the Prior of Royston, Ranulph de Crosseholme, Roger the Priourespynder of Royston, and Thomas Mariot of Ouresby (Owersby) in respect of a taking of 20 oxen, 20 cows, 200 sheep, 40 lambs, and 100 pigs," in villa de "Langouresby in quodam loco quia ipse invenit averia prædicta "in prædicto loco de Nettilbuske, "communiam prædicti Prioris depascentia et conculcantia, ipse, ut ballivus ipsius Prioris, voluit cepisse ibidem averia prædicta, et custodes averiorum "illorum fugerunt cum averiis illis de loco illo usque ad prædictum locum de Francroft, et ipse "recenter prosequendo, ut ballivus prædicti Prioris, cepit ibidem averia prædicta sicut ei bene "licuit, &c. Et prædicti Ranulphus et Thomas Mariot venerunt ibidem in auxilium prædicti Rogeri ad prædictam captionem faciendam." 66 6 C., sur. A.D. 1345-6. No. 8. the answer in its entirety is given to the lord; therefore the bailiff cannot justify that which his principal has disavowed; for, if it were otherwise, it would follow that the bailiff would have the return of cattle taken for the use of his principal when nis principal has disavowed the taking, and that cannot be. WILLOUGHBY. That is true; he will not have the return, but he can excuse himself in respect of the damages which it is your object to recover against him.-Thorpe. This suit is to be determined with reference to realty, and to that the bailiff cannot be a party without his principal, and his principal can never be made a party by aid-prayer after the disavowal.-Willoughby. That is true; he will never have aid of his principal, but still the bailiff will be able to excuse his tort, because after aid has been prayed, in a case in which the bailiff might expect aid, even though the principal should not appear, he will maintain the issue in order to excuse himself with regard to damages; and you will possibly be able to say that he took the beasts de son tort demene, and not for the cause assigned.-Thorpe. Such an issue might be had on a writ of Trespass, but never on a Replevin.-Haveryngton. We tell you that the plaintiff has land in both vills, and is lord of both vills, and by reason of his lands has had common of driving and driving back from one vill into the other, from time whereof there is no memory; and we do not admit that the two vills do not intercommon; judgment whether you can maintain the 4 No. 8. est done au seignur; 1 3 semble il qe tut le respons A.D. 1345-6. |